State v. Denson

302 So.3d 27

STATE of Louisiana

v.Corey DENSON (Financial Casualty & Surety, Inc.)

State of Louisiana

v.Wilfred Celestine & Kendall Celestine

NO. 2019-KA-0251

NO. 2019-KA-0252

Court of Appeal of Louisiana, Fourth Circuit.

JUNE 3, 2020

PERRY M. NICOSIA, DISTRICT ATTORNEY ST. BERNARD PARISH, DAVID C. JARRELL, OFFICE OF THE DISTRICT ATTORNEY, 1101 W. St. Bernard Highway, Chalmette, Louisiana 70043, COUNSEL FOR STATE/APPELLANT

MICHAEL D. SINGLETARY, SINGLETARY & ASSOCIATES, APLC, 600 Congress Avenue, 14th Floor Austin, Texas 78701, COUNSEL FOR FINANCIAL CASUALTY & SURETY, INC./ APPELLANT-APPELLEE

(Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Dale N. Atkins )

JAMES F. MCKAY III CHIEF JUDGE

In this consolidated appeal, the defendants, Corey Denson ("Denson"), Wilfred Celestine, ("Celestine"), and their surety, Financial Casualty & Surety, Inc., appeal the district court's December 28, 2018 judgments and orders relevant to surety bond obligations. In regards to Corey Denson, we affirm the district court's judgment granting the State's Exception of Prescription and denying Financial Casualty & Surety's Motion to Set Aside Bond Forfeiture. In regards to Wilfred Celestine, we reverse the district court's judgment denying the State's Exception of Prescription and granting Financial Casualty & Surety's Motion to Set Aside Bond Forfeiture. For the following reasons, we affirm in part, reverse in part and remand to the district court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

This consolidated appeal involves the application of La. C.Cr.P. art. 345(D)¹ in State of Louisiana v. Corey Denson (Financial Casualty & Surety, Inc. ) and State of Louisiana v. Wilfred Celestine (Financial Casualty & Surety Inc. ). As the matters result in different outcomes and have convoluted procedural and factual histories, for clarity, we will address the merits of the cases separately.

COREY DENSON

The relevant facts and procedural history relevant to Corey Denson are as follows:

On December 12, 2013, Denson was charged in the Thirty-Fourth Judicial District Court in the Parish of St. Bernard Parish by bill of information with a violation of La. R.S. 14:62, Simple Burglary in Case No. 13-10704. Denson secured two commercial surety bonds with Financial Casualty & Surety, Inc. ("Financial") for the sum of $50,000. Financial posted the bonds under power of attorney numbers FCS25-1242674 and FCS25-1242673, to secure Denson's appearance on the underlying charges.² On February 3, 2015, Denson failed to appear for a court hearing; the State moved for a bond forfeiture. The district court issued a bench warrant for Denson and executed a Judgment of Bond Forfeiture against Financial for the $50,000.

On March 4, 2015, the Clerk of Court issued a Notice of Signing of Judgment related to the February 3, 2015 Judgment of Bond Forfeiture, which reflected that the Notice of Judgment of Bond Forfeiture was mailed to Denson and Financial via U.S. Certified Mail, in accordance with La. C.Cr.P. art. 332³ and La. R.S. 15:85⁴ .

On April 27, 2015, Financial filed an ex parte Motion to Set Aside Bond Forfeiture pursuant to La. C.Cr.P. art. 345(D) based upon Denson's incarceration in another parish, St. Tammany. At that time, Financial failed to tender the requisite transportation cost to the Sheriff of St. Bernard Parish, which is statutorily mandated by La. C.Cr.P. art. 345(D). Financial attached to its motion a Letter of Verification of Incarceration from St. Tammany Parish verifying that Denson was booked on January 29, 2015, and incarcerated; no release date was noted. On April 28, 2015, the district court signed an ex parte order granting Financial's Motion to Set Aside Bond forfeiture and the relief requested.

On May 5, 2016, the State discovered that the district court had signed the order granting Financial's ex parte Motion to Set Aside Bond Forfeiture Judgment. On May 16, 2016, the State filed a Petition and Order for a Writ of Habeas Corpus ad Prosequendum to have Denson transported from St. Tammany Parish to St. Bernard Parish. On May 17, 2016, the State filed a Petition to Annul Judgment Setting Aside Bond Forfeiture. On August 4, 2017, the State filed a Motion for New Trial seeking a reversal of the district court's April 28, 2015 judgment granting of Financial's Motion to Set Aside Bond Forfeiture. The State essentially premised its motion on Financial's failure to pay the requisite transportation cost pursuant to La. C.Cr.P. art. 345(D) and La. C.C.P. art. 1913, as the State was not served with the requisite Notice of Judgment. On September 7, 2018, the district court issued a judgment annulling the April 28, 2015 judgment that had granted Financial relief under La. C.Cr.P. art. 345(D).

On September 26, 2018, the State filed a Rule to Show Cause under La. R.S. 15:85 to enjoin Financial from issuing bonds in the Parish of St. Bernard due to its failure to pay the October 26, 2015 Judgment of Bond Forfeiture. The district court set the matter for hearing on November 16, 2018.

On November 8, 2018, Financial filed a Motion to Set the Motion to Set Aside Bond Forfeiture previously filed on April 27, 2015, for hearing and filed a Supplemental Motion to Set Aside. On November 14, 2018, the State filed an Exception of Prescription. On November 16, 2018, the district court consolidated Denson 13-10704 and Celestine 15-05189 and heard the merits of Financial's motions as well as the State's Exception of Prescription and Rule to Show Cause pursuant to La. R.S. 15:85. On December 28, 2018, the district court, after taking the matter under advisement, issued an order granting the State's motions in the Denson case. The order stated, "the court recognizes that the previous judgment herein in favor of the State of Louisiana against Financial Surety & Casualty Company in the amount of FIFTY THOUSAND and 00/100 ($50,000) DOLLARS together with legal interest from the date of the original judgment of bond forfeiture, all as previously ordered herein on March 4, 2015." On December 29, 2018, the court mailed a Notice of Judgment to the parties. On January 7, 2019, Financial filed a Motion for Suspensive Appeal pertinent to the December 28, 2018 judgment.

STANDARD OF REVIEW

We review questions of law under a de novo standard of review. Deichmann v. Moller 2018-0358, pp.4-5 (La. App 4 Cir. 12/28/18), –––So.3d––––, 2018 WL 6823153. This standard of review is applicable to both Denson and Celestine.

LAW

Applicable to both Denson and Celestine are La. C.Cr.P. art. 345 and La. R.S. 15:85.

The primary point of contention in this appeal is the interpretation and application of La. C.Cr.P. art. 345, which provides in pertinent part:

(D) If during the period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the State of Louisiana or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:

(1) The defendant or his sureties file a motion within the period allowed for the surrender of the defendant. The motion shall be heard summarily.

(2) The sureties of the defendant provide the court with adequate proof of incarceration of the defendant, or the officer originally charged with his detention verifies his incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the period allowed for the surrender of the defendant at the time the defendant or the surety filed the motion, shall be deemed adequate proof of incarceration of the defendant.

(3) The defendant's sureties pay the officer originally charged with the defendant's detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant's detention prior to the defendant's return . (Emphasis added).

La. R.S. 15:85 provides in pertinent part that:

(A) If a defendant fails to appear ...and a judgment of bond forfeiture rendered against a commercial surety company has not been satisfied ...the prosecuting attorney may file with the court, in the parish where the bail undertaking is forfeited, a rule to show cause why that commercial surety company should not be prohibited from executing criminal bail undertakings before the court issuing the judgment of bond forfeiture.

ASSIGNMENTS OF ERROR

Financial asserts that the district court erred in finding that it failed to surrender Denson, in accordance with La. C.Cr.P. art. 345(D) and in granting the State's request for injunctive relief pursuant to La. R.S. 15:85.

DISCUSSION

Relevant to Denson, Financial argues that the district court's December 28, 2018 judgment reinstating the February 3, 2014, judgment of bond forfeiture was legal error because all three statutorily conditions, pursuant to La. C.Cr.P. art. 345(D), were satisfied.

Financial asserts that it provided the district court with evidence that Denson was incarcerated in St. Tammany Parish when the motion to set aside bond forfeiture was filed on March 4, 2015, and thereafter was incarcerated in Oklahoma City FTC⁵ when the motion was heard. Financial further asserts that the $1,679.00 reasonable cost of transporting Denson back to St. Bernard Parish from Oklahoma City were deposited in the registry of the court on November 16, 2018. Based on these assertions Financial concludes that all three requirements were satisfied.

In State v. Magee , 2018-0355, p. 10 (La. App. 4 Cir. 9/4/19), 282 So.3d 271, 278, this Court noted that the purpose of bail (and a bond securing bail) is to ensure that "[t]he accused will appear at all stages of the proceedings to answer the charge for which he will be prosecuted." (citing State v. Jones , 2015-1232, p. 4 (La. App. 4 Cir. 8/17/16), 200 So.3d 950, 952 (citing State v. Allen , 2011-0693, p. 4 (La. App. 4 Cir. 8/8/12), 98 So.3d 926, 929 ). See also State v. Mosk , 2018-0287, pp. 5-6 (La. App. 4 Cir. 9/26/18), 257 So.3d...